Supreme Court

Regina (Johnson) v Secretary of State for the Home Department

[2016] UKSC 56; [2016] WLR (D) 531

2016 July 25, 26; Oct 19

Baroness Hale of Richmond DPSC, Lord Kerr of Tonaghmore , Lord Reed , Lord Hughes , Lord Toulson JJSC

Nationality — British citizenship — Acquisition — Claimant born in Jamaica to Jamaican mother and British father — Only Jamaican citizenship acquired as parents not married — Claimant living in United Kingdom but not applying for British citizenship — Claimant convicted of serious offences and therefore unable to acquire citizenship — Home Secretary serving deportation notice on claimant as foreign criminal — Whether good character requirement for claimant to acquire citizenship unlawfully discriminatory — Whether statute incompatible with Convention — Claimant contending discrimination in breach of Convention right because he would have not have been liable to deportation had his parents married — Whether Home Secretary erring in certifying Convention rights claim as clearly unfounded — Whether deportation breaching Convention rights — British Nationality Act 1981 (c 61), s 41A (as inserted by Borders, Citizenship and Immigration Act 2009 (c 11), s 47(1, and amended by Immigration Act 2014 (c 22), Sch 9, para 70(3)) — UK Borders Act 2007 (c 30), ss 32, 33 — Human Rights Act 1998 (c 42), Sch 1, Pt I, arts 8, 14

Facts

The claimant was born in Jamaica in 1985 to a Jamaican mother and British father who were not married. He moved to the United Kingdom with his father when he was aged four. Under the law in force at his birth, he was a Jamaican citizen but not a British one. He would have been a British citizen had his mother and father been married, or had they married subsequently, or had his mother been British and his father non-British. He would also have been granted British citizenship if he or his father had applied while he was still a child and, if over 16, he had been of good character, as required by section 41A of the British Nationality Act 1981, as inserted and amended. No such application was made. Between 2003 and 2008 he was convicted of serious criminal offences, culminating in a conviction for manslaughter, and therefore, under section 32 of the UK Borders Act 2007, the Home Secretary was obliged to order his deportation from the United Kingdom as a foreign criminal on completion of his sentence unless, pursuant to section 33 of the 2007 Act, his rights under the Convention for the Protection of Human Rights and Fundamental Freedoms would be violated. The Home Secretary served a notice that the claimant was liable to deportation. On the claimant’s appeal, the First-tier Tribunal held that his deportation was a proportionate and lawful interference with his rights to a private and family life under article 8 of the Convention, but remitted to the Home Secretary the question whether his deportation would be unlawfully discriminatory, given that he would not have been liable to deportation had his parents been married. The Home Secretary confirmed the deportation order and certified the claimant’s human rights claim as clearly unfounded, with the effect that he had no right of appeal from within the country. On the claimant’s claim for judicial review, the judge held that there had been a violation of article 14 of the Convention read with article 8 and he quashed the certification of the claim as clearly unfounded. The Court of Appeal allowed the Home Secretary’s appeal, holding that the matter had to be judged at the time of the claimant’s birth and that, since that had been before the Human Rights Act 1998 had come into force, there had been no violation of his Convention rights and thus the claim could be certified as clearly unfounded.

On the claimant’s appeal—

Held

Held, appeal allowed. Whilst the Convention did not guarantee the right to acquire a particular citizenship, the denial of citizenship, which had such an important effect upon a person’s social identity, was sufficiently within the ambit of article 8 to trigger the application of the prohibition on discrimination in article 14. Birth outside wedlock was a “status” for the purpose of article 14 and fell within the class of suspect grounds, where very weighty reasons were required to justify discrimination. What needed to be justified was the current liability of the claimant to be deported when he would not be so liable had his parents been married to one another when he was born or at any time thereafter. That was a present distinction which was based solely on the accident of birth outside wedlock, for which the claimant was not responsible. Since no justification had been suggested for that distinction, it was impossible to say that the claimant’s claim based on article 14 read with article 8 was clearly unfounded and, accordingly, the Home Secretary’s certificate to that effect would be quashed. Where a person had not automatically acquired citizenship at birth, it was reasonable to expect him to apply for it, but it was not reasonable to impose the additional hurdle of a good character test upon persons who would, but for his parents’ marital status, have automatically acquired citizenship at birth. Accordingly, a declaration would be granted to the effect that paragraph 70 of Schedule 9 to the Immigration Act 2014, which amended section 41A of the 1981 Act so as to impose a requirement that an applicant for British citizenship who, but for their parents’ marital status, would have automatically acquired citizenship at birth be also of good character, was not compatible with the Convention (paras 26–31, 34–35, 38–39).

Decision of the Court of Appeal [2016] EWCA Civ 22; [2016] 4 WLR 53 reversed.

Appearances

Hugh Southey QC and Paul Turner (instructed by Barnes Harrild and Dyer, Croydon) for the claimant.

Tim Eicke QC and Edward Brown (instructed by Treasury Solicitor) for the Home Secretary.

Reported by: Jill Sutherland, Barrister

© 2016. The Incorporated Council of Law Reporting for England and Wales.